Elk Mountain and an entrance to Elk Mountain Ranch near Interstate 80 in Carbon County. (Mike Vanata/WyoFile)

A federal judge ruled Friday that four Missouri hunters did not trespass when they corner crossed and passed through the airspace above Fred Eshelman’s Elk Mountain Ranch.

This story also appeared in WyoFile

Chief U.S. District Judge Scott Skavdahl granted the hunters’ request to dismiss most of Eshelman’s lawsuit that claimed the men trespassed and caused more than $7 million in damages. The men corner-crossed in 2020 and 2021 to hunt public land enmeshed in Eshelman’s 22,045-acre ranch.

Corner crossing involves stepping from one piece of public land to another at the common corner with two pieces of private property, all arranged in a checkerboard pattern. Corner crossing avoids setting foot on private land.

The ruling has implications for public access to 8.3 million acres of “corner locked” public land in the U.S. The hunters argued that the federal Unlawful Inclosures Act of 1885 prevents Eshelman from obstructing access across the corner.

“This is a long overdue and singularly great outcome for the entire American public and anybody who enjoys public lands,” the hunters’ attorney Ryan Semerad said. He and his colleagues “fully expect” an appeal.

Checkerboard ownership puts thousands of acres in Montana off-limits 

By: Amanda Eggert

Like Wyoming, Montana has vast acreages of public land effectively off-limits to members of the recreating public. OnX estimates the public is unable to access more than 871,000 acres of public land due to checkerboard ownership patterns. Most of that acreage is administered by federal agencies such as the U.S. Forest Service and the Bureau of Land Management. 

Also like Wyoming, Montana’s Legislature has taken up the issue. In 2013, the House of Representatives balked at advancing House Bill 235, which would have legalized corner crossing. Four years later, an effort to criminalize the practice stalled. House Bill 566 sought to make corner crossing without landowner permission a misdemeanor punishable by a fine of up to $500 and six months in jail. A hearing on HB 566 was canceled the day before the House Judiciary Committee was scheduled to take public testimony, and the measure died.

The complications posed by checkerboard ownership patterns also inform other sensitive land management conversations. The Custer Gallatin National Forest recently approved a land swap on the south side of the Crazy Mountains, for example, and agency leadership is currently mulling over a proposal to consolidate checkerboard land on the range’s east side.

The judge’s ruling did not address the disputed allegation that one hunter, Zach Smith, did set foot on ranch property at a spot well removed from one of several contested corners. A digital “waypoint” that Smith created in 2020 on the onX hunting app is located on Eshelman property, the ranch owner says. That proves Smith was on the ranch, the landowner and his attorneys have alleged.

Smith and his lawyer say the “Waypoint 6” could have been made from anywhere and its location proves nothing.

“A genuine dispute of material fact exists to preclude summary judgment concerning the alleged Waypoint 6 trespassing (which does not involve corner crossing)” Skavdahl wrote in his 32-page order. Any damages Eshelman would claim for that alleged transgression would be limited to “nominal damages” and not the $7.75 million Eshelman had claimed in lost ranch value, the judge wrote.

Skavdahl has scheduled a trial in June where that now-separate Waypoint 6 trespass allegation could be resolved.

“We do not know what will come of the remaining issue of material fact,” Semerad said of what he called “errant Waypoint 6.”

“For now, all my clients are very, very happy,” he said.

Wyoming Backcountry Hunters and Anglers launched a fundraising campaign in 2021 to ensure the hunters, Smith, Bradly Cape, Phillip Yeomans and John Slowensky, could have their day in court. The organization hailed the ruling.

“Today was a win for the people, both in Wyoming and across the country,” Land Tawney, Backcountry Hunters & Anglers president and CEO, said in a statement. “The court’s ruling confirms that it was legal for the Missouri Four to step from public land to public land over a shared public/private corner.

“Coupled with recent legislation passed by the Wyoming Legislature, we are happy that common sense and the rule of law prevailed,” his statement reads. “Backcountry Hunters & Anglers applauds the court’s careful balancing of access to public land and respect of private property rights. We look forward to finding more solutions to access — together.”

Skavdahl observed that with respect to the corner crossing issue “[t]here is no evidence the hunters made physical contact with [Eshelman’s] private land or caused any damage to plaintiff’s private property,” either in 2020 or 2021. The judge also agreed with Eshelman that he generally owns the airspace above his property and is entitled to use it.

But even property rights come with limitations and restrictions, Skavdahl wrote.

“History, federal case law, federal statutory law, and recent Wyoming legislation demonstrate corner crossing in the manner done by Defendants in this case is just such a restriction on Plaintiff’s property rights,” he wrote. “[D]efendants, ‘in common with other persons [have] the right to the benefit of the public domain,’ which necessarily requires some limitation on the adjoining private landowner’s right of exclusion within the checkerboard pattern of land ownership.”

The judge summarized and analyzed relevant court precedent to conclude that “corner crossing on foot in the checkerboard pattern of land ownership, without physically, contacting private land and, without causing damage to private property does not constitute an unlawful trespass.”

Even when the hunters grabbed two Elk Mountain Ranch fence posts, chained together as an obstacle at the first corner they encountered, and swung around them to step from public land to public land, they were protected by the UIA, which prevents landowners from blocking access to public land, the judge said.

WyoFile could not reach Eshelman’s attorneys Friday afternoon.

WyoFile is an independent nonprofit news organization focused on Wyoming people, places and policy.